What about Blood Tests and Urine Tests?
- There are two other types of tests that the officer can request that you take, blood and urine. Like the breath tests, these also have the same consequences and considerations in deciding whether to take or not take the tests. The Ohio Department of Health has certain procedures that are required to be followed in the drawing of a blood sample and the handling of the samples. Although these analysis are done in a laboratory, they are still subject to errors in the handling and analysis. If you are taken to a hospital for a blood draw, you still have all the rights that you have in relation to the breath test. They still must draw the sample within two hours of the alleged violation (operating while impaired) or the test usually will not come into evidence.
- Obviously, the blood tests have some health and safety factors to consider that are different from the breath test. But like in the breath tests, the blood or urine test will establish the level of alcohol in your system at the time of the sampling. If your blood alcohol was on the increase from having recently had an alcohol beverage, the level of your BAC will be higher at the time of the draw of the sample than at the time of your actual driving. Ohio Law allows this later sample to be used to convict you of a BAC level at the time of the driving. Scientific computations can be made using body weight, temperature, food consumed, amount and type of alcohol consumed, and time periods to actually do a retrograde extrapolation of your BAC at the time of driving to show that the later test was higher than at the time of the driving.
- To take or not take the blood or urine tests is still your decision based on what the results will likely be. If it will likely be over the limit or perhaps over the high tier level, it would not be beneficial to take the test. Politely refuse.
Will I lose my car or driving privileges?
- If you are convicted of a DUI offense, you certainly will lose your license for a minimum of six months; and depending on the number of prior convictions and alcohol level of your blood, breath, or urine tests, you could lose your license for life. After you lose it, you will be required to pay a reinstatement fee to the Bureau of Motor Vehicles to get your license back. Do not be mistaken in believing that if the officer or court failed to actually take your plastic license that you have the right to drive. The Bureau has a record of prior convictions and license status. If you are not valid with them, the possession of your plastic license does not make any difference. Even if your suspension time is up and you have not paid your reinstatement fees in full, you are still not valid to drive until the Bureau’s records are cleared.
- When you have been convicted of a prior DUI within six years of your arrest for the second DUI, you are subject to a provision that permits the court to impound your vehicle for 90 days even though you may get privileges to drive to and from work after 30 days. The legislature must have thought that putting the car in “jail” for 90 days would teach it not to drive drunk.
- On a third offense within 6 years, your vehicle is subject to forfeiture! That’s right, they will take your car when you have been convicted a third time.
- Driving privileges are at each court’s discretion, but the lengths of the suspensions are controlled by law and based upon the number of prior convictions. Some courts have policies on the amount of hours and days that they will grant work privileges. The privileges are often only to go to and from work, but some courts grant privileges for medical treatments, alcohol counseling, and to pick up children from daycare.
Can I Represent Myself?
- You have a constitutional right to defend yourself and to an attorney for the offense of DUI. Because of the technical issues of the department of health regulations governing the breath testing machines, the field sobriety testing guidelines of the National Highway Traffic Safety Administration, and the rules of evidence and voluminous body of case law related to the DUI defense, it would be foolish to try to defend yourself on a charge of DUI. To have an experienced attorney handle your DUI case is even more crucial because it affects most areas of your life.
What if I plead no contest to get it over with?
- The no contest (Nolle Contendere) is a plea that is most often used in a case where there is an accident or you could be sued in civil court. You do not want your plea of guilty to be used against you in the future civil preceding. Some people think it is a better or softer way of pleading guilty or will lead to a different result. By pleading no contest you are admitting the factual allegations contained in the report but leaving the determination of whether this constitutes guilt of the offense to the judge. Since the officers recite the language of the stature in the citation or complaint there will almost always be sufficient factual basis for the judge to find you guilty. So all you have done is to require the judge to read the report (which usually talks about how drunk you were and what a danger to the public you were) before he sentences you.
- There are legal reasons to plead no contest after certain motions to suppress or other motions have been filed to preserve the right to file an appeal to the issues decided in the motion. But to simply plead no contest will simply get you to GUILTY fast. Then comes the sentencing.
How do I find the right attorney to represent me?
- The charging of a criminal offense triggers certain time limits for the filing of various pleas, motions, demands, and appeals. If you have waited past these time limits, you will have waived your rights to various defense opportunities. The right to a trial by a jury must be filed in writing with the court or you will waive your right to have a jury trial. Even though you may think that you don’t want to have a jury trial in the beginning, you would be wise to preserve that right. Your request for occupational privileges and appeal of the Administrative License Suspension is required to be filed within 5 days. Cases say that when that time has run, your right to appeal is gone. Then you will have to pay a reinstatement fee to the Bureau of Motor Vehicles (which is presently $425) and obtain a new plastic license. So, the time to hire an attorney is before you go to court the first time. This is so that you can have the correct motions and pleas entered for and on your behalf and to secure all your rights early on in the case. There are also “speedy trial” statutes that require the state to try your case within a certain time period. Going to court without an attorney may result in you waiving the speedy trial requirements (another defense opportunity).
- If you have any hopes of reducing your exposure to all the sanctions of a DUI charge, you can only do that with a well-trained and experienced DUI defense attorney. Although you may call the attorney that did your will or real estate closing for a referral to an experienced DUI attorney, most general practice lawyers either stay away from defending DUI cases or simply plead their clients guilty without conducting a thorough and comprehensive investigation and researching the current law on issues in each case. The best way to find a good DUI lawyer is by his reputation with people who are in a position to know. Ask other attorneys whom they would use if they were charged with DUI.
- Don’t just take the first name given; ask for three names from each source. Find out if the attorney is trained in the breath testing machine and in field sobriety testing. Ask whether the attorney has had cases in the court of appeals on DUI issues. If you do not know any attorneys, go to the courthouse and ask people like bailiffs, clerks, and judges whom they would recommend and; again, get three names. Call the Ohio Association of Criminal Defense Lawyers for an attorney referral (Susan Carr, Executive Director 1-800-443-2626). Or check with the National College for DUI Defense web page
The law surrounding DUI charges is very complex and highly technical. As a result, many myths surrounding the charge and the evidentiary breath testing machines have made their way into the public’s perception. Here are a few of Larry’s favorite myths:
- If you suck on pennies, it can lower your BAC reading.
- The reality is that copper has no effect whatsoever on the BAC breath testing machine’s reading of your breath sample. It just does not work.
- I can’t get a DUI on a lawnmower or bicycle.
- Not true. In Ohio, “vehicle” generally includes any device that is moved by power other than human power. Courts have determined that a mounted bicycle, golf cart, tractor, riding lawnmower and other devices are included in the definition of “vehicle”.
- Anyone can defend a DUI Charge.
- Actually, DUI charges are highly complex and involve a huge amount of scientific and technical knowledge. Only experienced DUI attorneys armed with the knowledge about the FSTs and chemical tests, along with officer procedures, have what it takes to successfully defend DUI cases.
- “Alcohol on person’s breath” is a sign of alcoholic impairment.
- To begin with, just because your breath may smell like an alcoholic beverage does not mean that you are impaired. People react to alcohol in different ways. An officer usually doesn’t smell the alcohol itself. Rather, the officers are probably detecting the odor of the ingredients used in alcoholic beverages (wheat, fruits, etc.). In fact, a study found that the strength of the smell of alcohol was unrelated to actual BAC levels.
- The Field Sobriety Tests accurately identify drivers who are under the influence.
- This is not always the case. While they can test a person’s coordination, these tests are not bullet-proof when it comes to assessing whether or not someone is impaired. One study showed completely sober individuals performing the field sobriety tests to a group of police officers. The officers said that forty six percent of the individuals were too drunk to drive! Officers can make mistakes just like normal individuals.
- The evidentiary breath testing machines can measure the concentration of alcohol in an individual’s blood.
- False. Breath testing machines cannot analyze how much alcohol and individual has in their blood. That can only be done by drawing a blood sample. The machines measure the alcohol in the person’s breath, and only give an estimate of the actual blood concentration of alcohol.
- The roadside breath testing machine is the only device that police officers use.
- False. The machine used at roadside is a portable breath testing machine, or PBT, and they are generally considered unreliable. The results of these tests are not admissible in court. The police use them to establish probable cause to arrest a suspected drunk driver.